The mentally ill and cognitively disabled in prisons often are detained indefinitely

The Australian

a day ago

The next day, as we entered the prison, I saw a concrete yard that adjoined the isolation block. Four small cells fronted on to this yard and one of them contained a prisoner by the name of Adrian Faulton, a 25-year-old severely cognitively disabled man from the remote Arnhem Land community of Wadeye. For five months, Faulton had been locked for 22 hours a day in a small cell in Berrimah's isolation block. He was unfit to plead and under the care of the public guardian. This is what I wrote on the front page of The Australian on December 8, 2008:
'When getting out?' Mr Faulton asks of anyone who will talk to him. He spends his hours pacing back and forth in his cell, periodically asphyxiating himself as a distraction from the blank horror of his days, squeezing his throat with his thumb and shutting off the airway. Most nights, his wailing resounds in the isolation wing.
When his mother visited him in prison, it was a heartbreaking scene as she wept and attempted to hold her son. When she departed, Adrian fell down on his hands and knees. sobbing and calling out for half an hour: 'go home, please, please'.
I believe this newspaper report to be the first – and still to date the only – contemporaneous, first-hand account in the media of the experience inside prison of a person unfit to plead subject to indefinite detention in this country. I later found out that Faulton had chewed one of his fingers off in prison.
The Northern Territory, which has one of the highest imprisonment rates in the world, is of course an outlier in its almost total lack of forensic healthcare facilities for prisoners such as Faulton, with an unknown number of cognitively disabled and severely mentally ill individuals housed in prison.
It was estimated in 2022 that the number of people with severe mental illness or cognitive disability, or both, who were detained indefinitely in the nation's prisons was about 1200 people nationwide, with documented examples of forensic patients being detained for up to 42 years and 30 years respectively in Queensland and the Northern Territory.
Extraordinarily, a federal parliamentary committee that investigated the issue couldn't gain clear statistics on this patient cohort – not even its real size, let alone any evidence beyond anecdote as to patients' experiences in detention, length of detention or rehabilitation outcomes. This underscores the fact our enormously expensive forensic justice systems are subject to little granular data collection, let alone scrutiny, in Australia. I would go so far as to say that, apart from some basic publicly accessible data, prisons are subject to the least transparency and scrutiny as to what really goes on in them of any major institution in this country.
To an observer like me, especially after having read this month the extraordinary personal reflection of forensic psychiatrist Trevor Ma in the journal Australasian Psychiatry, an absence of transparency generally in prisons leaves those valiantly attempting to provide care amid severe moral injury, fighting in the shadows. Ma painted a devastating picture of how Australia's carceral systems were making mentally ill people on the inside infinitely worse. Restrictive practices are the norm, including segregation of at times up to 24 hours a day, sometimes on and off for years. Effective treatments for those with psychotic disorders in the general prison system are simply widely unavailable.
Ma's stark observation that 'Australian prisons are places of punishment and fundamentally incompatible with good mental health' throws up a dilemma that seems to me to challenge directly the way our criminal justice system deals not only with the huge proportions of those with mental illness in prisons who receive little psychiatric care, but also the much smaller population that is unfit to plead.
When these individuals are placed on forensic orders, it's for a dual purpose: rehabilitation, but also the protection of the public. Politicians are justifiably concerned to protect public safety and most of those on forensic orders have been charged with extremely serious crimes. But I suspect if the public understood the circumstances of deprivation and disadvantage that affect many people with disability, who often end up in prison because of a failure of community healthcare, our discourse on these complex matters would be greatly enhanced.
Judges who issue forensic orders assume healthcare will be provided for these patients, ideally in a forensic hospital. But this doesn't always happen.
In NSW, the number of forensic patients in maximum security prison has been growing year on year as forensic hospitals overflow. The waiting list to get a bed in Sydney's main forensic hospital at Malabar frequently stretches to two years. Rehabilitation of mentally and cognitively impaired forensic patients in prison has been described by judges as an impossibility, and in fact the reverse occurs.
It's interesting to ponder how societies dealt with mentally ill and mentally disabled patients before the birth of psychiatry and the development of the common law that ushered in fitness to plead procedures. In pre-Norman England, before the development of the system of trial by jury after the Norman Conquest and the subsequent establishment of the King's Courts, those deemed insane were considered unable to form the necessary intention required for guilt, known as mens rea, and routinely were sent home to the care of their families rather than punished. Ancient Roman law also followed the principle of satis furore ipso puniter – living with madness is punishment enough for criminal behaviour.
As psychiatry advanced and understanding of mental illness became much more sophisticated, being deemed an idiot or madman was not sufficient to be excused from being held to possess the faculties necessary for a trial to proceed as long as a defendant could understand the trial process.
It was the case of James Hadfield in Victorian England, a member of a millennialist cult who attempted to bring about his own judicial execution via the botched shooting of King George III in 1800 at the Theatre Royal in Drury Lane, to bring about the Second Coming of Christ, that led to the enactment of the Criminal Lunatics Act in Britain.
The Criminal Lunatics Act mandated that those unfit to plead or not guilty by reason of insanity be sentenced to detention, predominantly in prisons or asylums. Treatment consisted of restraint and sedation akin to punishment. The finding of insanity required a diagnosis of a medical disorder. But what was delivered in asylums could hardly be said to be treatment. I would contend that it is arguably this lack of nexus between a medical diagnosis and a genuine medical treatment that still reverberates through justice health systems today when it comes to those unfit to plead.
Incarceration of those unfit to plead still does not come with any specific mandate under modern laws to provide treatment. This is especially so for the growing number of cognitively disabled people on forensic orders and in prisons generally. Cognitive disorders can be managed but cannot be rehabilitated. So how can our forensic systems be said to be at all fit for purpose?
When it comes to attempting to obtain liberty, the challenges for patients can be enormous. Even for those in forensic hospitals, it seems to me that the challenge for a patient of demonstrating at tribunal review hearings or in court that they no longer pose a risk to the public amounts to a Kafkaesque task – largely because remedial programs are so thin on the ground. Without access to such programs and demonstrated remediation, providing sufficient evidence to a risk-averse tribunal or judge in seeking a non-custodial order or release can be extremely difficult.
Barrister and academic Ian Freckelton has undertaken groundbreaking analysis of the reasoning of Supreme Court judges in Victoria who are tasked with hearing applications for release by forensic patients. In Victoria, the legislative threshold that must be satisfied of non-endangerment to the public has been held by judges to hinge on the achievement of stable mental health: in particular compliance with treatment and the substantial diminishment of symptoms or effective recovery. All of these factors are heavily influenced by the availability and effectiveness of mental health services within forensic detention systems. If these services are stretched so thin as we all know they are, here again is the catch-22 for patients. Not only that, judges also have tended to take into account the provision of services that would support a released patient in the community. Threadbare services here again come back to bite the patient: the state's neglect of community mental health could well mean the difference between incarceration and liberty.
In NSW, applications for release are decided by the Mental Health Review Tribunal. Unlike most mental health tribunals around Australia, hearings of the MHRT are open to the public in NSW. Yet, short of individuals attending to observe hearings, which is incredibly rare, we know virtually nothing from the public record about how the tribunal balances risk and liberty when hearing applications for release. Judgments are rarely published by the tribunal, ostensibly on the basis of identity protection.
Apart from a few key academic studies, we know little about how long patients spend in forensic detention – for instance, do they routinely spend longer in forensic detention than they would have if they had pleaded guilty to the crime of which they were charged?
So what is the risk of further crime on release? The literature in NSW shows that when forensic patients are able to access rehabilitation services, they pose a relatively low risk of recidivism when granted conditional and unconditional release. A 21-year retrospective outcome study by Sydney psychiatrist Olav Nielssen and his colleagues at the University of NSW found that reoffending by forensic patients released into the community in NSW was low and that none of the patients who were granted unconditional release in the 20 years up to 2010 went on to commit a further serious offence. Thomas Embling Hospital in Victoria has similar low recidivism rates for serious crime among those who have forensic orders revoked – in fact in 2021 that rate was zero.
When I've spoken to Nielssen about these findings, he has described them as one of the few bright spots on the mental illness policy horizon, in that it shows the forensic healthcare system is working and people are being rehabilitated. But could it be that if these patients had been provided with appropriate secure healthcare and social support outside of the justice system, the same low rates of recidivism would have been seen? Is this practical or affordable? I am not sure.
Certainly recidivism rates among those released from forensic orders are significantly lower than the general prison population. I do wonder, if we accept that those who have committed serious offences but are unfit to plead were very unwell or mentally impaired at the time of the offence, are we over-estimating the ongoing risk they pose if properly treated? Such treatment and the critical provision of secure housing are orders of magnitude cheaper to the state than forensic detention.
It is a sad reality even today that forensic patients are treated, in some instances, more harshly under the law than convicted prisoners. This has been starkly demonstrated in NSW by Kerri Eagle, a lawyer turned forensic psychiatrist, in her academic work analysing how the courts have dealt with forensic patients subject to limiting terms who face applications by the state for extensions to their forensic status. NSW imposes limiting terms – that is, a time-limited forensic order – for those who are unfit to plead who are found at a special hearing on the limited evidence available to have committed the crime for which they were charged. It's a qualified verdict of guilt but does not amount to a conviction. Amendments to the Mental Health (Forensic Provisions) Act in NSW legislate a test in similar terms to that applied to high-risk offenders subject to preventative detention orders – except that the legal threshold the state must meet to keep forensic patients in detention or subject to a custodial order, as opposed to, say, a recidivist pedophile, is far lower. Eagle has described this as 'unequal treatment under the law'. I think I'd describe it as flabbergasting.
Eagle's analysis found that almost all of the forensic patients whose cases she studied, most of them cognitively disabled but without mental illness, had remained in jail throughout their limiting terms and had not been transferred to a forensic hospital. This meant they effectively had received no rehabilitation or therapeutic care in the least restrictive environment possible. The trend was so stark that Eagle concluded these forensic patients were subject to ongoing loss of liberty by reason of a lack of access to appropriate care and treatment in prison. It hardly needs to be said that a prison environment for a cognitively disabled person is wholly inappropriate and amounts to punishing such individuals for something over which they have no control: their disability.
So what do we know about how forensic patients respond to their predicament and its profound uncertainty? In contrast to many aspects of healthcare and social service where experience rules the day, the experience of forensic patients is barely documented at all. Most of the academic studies of experience that have interviewed those in forensic detention internationally describe universal themes: patients experience a pervasive sense of resignation, fear, dread and anxiety daily. Patients are subject to conditions that in some instances are more restrictive than prison. They speak of living in fear of punishment, being subject to threats, violence, exertion of authority and living with a profound sense of disempowerment. Patients experience their situation in custody as being fixed and predetermined, and feel a sense of being 'stuck', with no power to influence their circumstances.
In conclusion, I want to return to the Northern Territory. After my visit to Berrimah prison in 2008, I was contacted by the guardian of a young Arrernte man, who told me that this young man was being held in maximum security prison in Alice Springs in horrendously harsh conditions and had been there for several years despite being unconvicted and cognitively disabled. Aged in his early 20s, the young man routinely would bang his head against the bars of his cell until he bled. He was shackled every time he stepped out of his cell, routinely forcibly sedated, and on several occasions placed in a spit hood and strapped to a restraint chair. Tragically, this young disabled man had fatally stabbed his uncle, whom he dearly loved, as a teenager after being left alone and unsupervised all day in a remote community. I followed this man's story for more than 15 years and late last year was able to report on his eventual freedom after 17 years in the forensic system. The NT government had fought tooth and nail for the continuation of forensic orders, but the NT Supreme Court was swayed by the fact, with the right care, with National Disability Insurance Scheme and family support, this young man displayed an enormous reduction in behaviours of concern and was a largely peaceful citizen. Sadly, I cannot name this man now because in May he died at the age of just 34, after less than a year of freedom. He spent almost as many years of his life locked in prison as he did free.
But his fight for freedom set an important precedent. The headline of our story of this man's eventual, cruelly short freedom, was: Imprisoned by Disability. His case was extreme, but that headline would seem to me to apply to many forensic patients, even those in forensic hospitals. The key question for me in these matters is: amid an appalling lack of mental healthcare and in the enormous challenges of caring for those charged with awful crimes but not criminally culpable, are we really mitigating risk or are we amplifying it? And at what cost?
This is an edited text of Natasha Robinson's speech to the Royal Australian and New Zealand College of Psychiatrists Forensic Faculty Conference in Melbourne. Robinson, The Australian's health editor, is an admitted lawyer and a doctoral candidate at QUT's Australian Centre for Health Law, researching forensic mental health law.